Monthly Archives: June 2011

The federal government can force its citizens to purchase a minimum level of health insurance coverage.

That’s the bottom line of a 2-1 decision issued yesterday by the 6th Circuit — the first federal appeals court to address the constitutionality of the Patient Protection and Affordable Care Act.

“Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance,” wrote the Judge Boyce Martin Jr. for the majority in Thomas More Law Center v. Obama.

President Barack Obama signed the Patient Protection and Affordable Care Act into law in 2010. Section 1501 of the Act, known as the Minimum Essential Coverage Provision, imposes a tax penalty on those who fail to purchase a minimum level of health insurance beginning in 2014.

In the case before the 6th Circuit, the Thomas Moore Law Center, a public interest law firm, and several taxpayers sued to enjoin the implementation of the Act, arguing that the individual mandate violated the Commerce Clause.

U.S. District Judge George Steeh for the Eastern District of Michigan decided that the individual mandate was constitutional in a ruling issued last October.

Yesterday’s decision by the 6th Circuit affirmed the lower court and featured Judge Jeffrey Sutton as the first Republican-appointed judge to side with the Obama Administration in its fight to defend the landmark legislation.

Sutton, an appointee of President George W. Bush, joined Martin — an appointee of President Jimmy Carter — in the majority.

In a concurring opinion, Sutton addressed the concerns of those who contend that the Act regulates “inactivity” and that letting the individual mandate stand sets a dangerous precedent for the federal government’s interference with individual rights.

“Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life,” wrote Sutton.

“Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.”

The third member of the panel, Judge James Graham, is an appointee of President Ronald Reagan and a senior judge for the U.S. District Court for the Southern District of Ohio.

In his dissent, Graham argued that the individual mandate constituted a dangerous overstepping of congressional authority.

“If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? …

“To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does,” Graham wrote.

The 6th Circuit case is one of a number of challenges to the Act working through the federal courts on their way to an ultimate showdown in the Supreme Court — perhaps as early as next term.

It’s not unusual to see parties grasping at straws to avoid unfavorable arbitration awards.

But one California businessman wins the prize for straining credulity by claiming that he lost a commercial dispute because of the anti-German biases of an arbitrator whose parents were Holocaust survivors.

The unhappy loser is Peter Rohde.

Rohde is a principal of Science & Ingredients, Inc., a California corporation. Rohde became embroiled in a dispute concerning the formation of a limited liability company with R&R Beteiligungsgellschaft, a German company owned by Herbert Rebmann.

The dispute was arbitrated by Stephen E. Haberfeld, a retired federal magistrate judge. Haberfeld ruled against Rohde and awarded Rebmann $1.1 million in attorney fees as the prevailing party.

Rohde was understandably unhappy with the result and began fishing around for reasons to have the arbitration award vacated.

The California businessman thought he found a reason when he searched the Internet and learned that Haberfeld’s parents were German Jewish escapees who lost family and property in the Holocaust. In addition, Haberfeld was a member of the “1939 Club,” an organization dedicated to avoiding a repeat of the Holocaust.

According to Rohde, these facts were relevant because he was born in Germany in 1943 and his father served in the Wehrmacht — the regular German Army — during World War II. Moreover, the father of Rohde’s wife served in the infamous Schutzstaffel, or SS.

In seeking to have the arbitration award against him vacated, Rohde testified that if he had “known about [Haberfeld’s] religious affiliation, his cultural affiliation, and the dedication to keeping the memory of the Holocaust alive, I never would have allowed him to be the arbitrator in my case.”

Of course, Rohde’s commercial case had absolutely nothing to do with the Jewish religion or the Holocaust, so it’s sorta hard to see the connection. Moreover, there’s no evidence that Haberfeld had any notion of the Rohde family tree.

A state trial court confirmed the arbitration award over Rohde’s protestations that Haberfeld breached a duty to disclose his religious and cultural affiliations.

Yesterday, the California Court of Appeal agreed that Rohde didn’t have a leg to stand on.

“There was nothing at all in Haberfeld’s professional record that indicated bias toward Germans (or anyone else). Defendants do not rely on anything Haberfeld said or did, merely his family’s history and his involvement with the 1939 Club. …

“Further, Haberfeld’s background was entirely irrelevant to the commercial case before him. This case had nothing to do with World War II, and nothing to do with the Holocaust. No facts were presented that would support a reasonable belief that Haberfeld was not impartial. The background of Rohde and his family and Haberfeld’s family were irrelevant,” the court said.

It further observed that Rohde should have done his Googling before the arbitration began if he had any concerns about Haberfeld’s background.

The court proceeded to underscore the point that an “arbitrator’s impartiality should never be questioned simply because of who they are.”

The court said that while the Rohde defendants “purport to rely on Haberfeld’s 1939 Club involvement and family history, they use these factors as a proxy for arguing that Haberfeld should have disclosed that he is Jewish and of German ancestry. …

“To satisfy Rohde, Haberfeld would have been required to disclose his religion and cultural identity as well as his involvement in the 1939 Club, even though both parties were German and the case had nothing whatsoever to do with World War II. Indeed, Rohde asserts, without adequate factual support, that Haberfeld conducted the arbitration in a manner intended to ‘punish me for the harms brought on his family.’” (Rebmann v. Rohde)

Since the ultimate aim of drunk driving laws is to prevent mayhem on the roadways, did it really make sense for Minnesota police to arrest a disabled man who had a blood alcohol content of .17 while riding around on a motor scooter that has a maximum speed of 5.75 mph?

Of course it didn’t. And that’s what the Minnesota Court of Appeals decided in recently overturning the driving while impaired (DWI) conviction of James Anthony Brown Jr.

Brown is physically disabled and uses a battery-operated three-wheel Legend Pride Mobility Scooter to get around in his home town of Grand Rapids.

On July 29, 2009, Brown drove his scooter to a local car dealership. Evidently, Brown had been drinking and was being a pest, so someone at the dealership called police to the scene to investigate a case of public intoxication.

Grand Rapids police arrested Brown, who consented to a breath test. After blowing a .17, he was charged with third-degree DWI for driving his scooter with an alcohol concentration of more than .08.

Of course, Brown had only been driving along city sidewalks, but that didn’t matter to prosecutors who later managed to persuade a state judge to convict Brown.

The Minnesota Court of Appeals fortunately put an end to the madness earlier this month when it concluded that the state’s drunk driving law obviously did not apply to motor scooters that the disabled and elderly use to enhance their quality of life.

The court said that “Brown’s scooter is, for purposes of [state law], a wheelchair and does not meet the definition of ‘vehicle,’ because it is generally not a ‘device in, upon, or by which any person or property is or may be transported … upon a highway.’ …

“Because Brown’s scooter is not a ‘vehicle’ under the relevant statutory definitions, it is not a ‘motor vehicle.’ And Brown is not a ‘driver,’ because when he uses his scooter he is not driving or in physical control of a ‘vehicle.’” (Minnesota v. Brown)

A medical malpractice plaintiff claims that a stroke victim wouldn’t have died had she received tissue plasminogen activator (tPA) shortly after the onset of her symptoms.

Friday, however, the 8th Circuit decided that the plaintiff’s medical expert couldn’t testify that the patient stood an excellent chance of at least partial recovery had she timely received tPA.

On Feb. 9, 2006, an ambulance took Velda Smith to the Wagner Community Memorial Hospital in Wagner, South Dakota. The woman had suffered an ischemic stroke.

Smith arrived at the hospital at 5:09 p.m. and was seen immediately by Dr. Gary Bubak.

Noting Smith’s left-facial weakness and elevated blood pressure of 213/100, Dr. Bubak arranged to have Smith transported to a nearby facility that was equipped for a CT scan.

The CT scan was performed and at 8:15 pm Dr. Bubak was notified that Smith’s test was negative for a cerebral hemorrhage. Smith was eventually transported back to Wagner Community Memorial Hospital, where she remained until being transferred to another facility on Feb. 14, 2006. The woman subsequently passed away on Sept. 4, 2009.

Smith’s estate sued Dr. Bubak for medical malpractice in the U.S. District Court for the District of South Dakota. The estate alleged that the effects of the Smith’s stroke would have been mitigated had she been given tPA, which restores blood flow.

According to Smith’s estate, Dr. Bubak never considered sending his patient to a facility where she could have been administered tPA.

The key to the estate’s lawsuit was the expert testimony of Dr. James McDowell, who opined that approximately 58 percent of stroke patients who timely receive tPA show measurable improvement.

The district court found the testimony unreliable and barred the expert from rendering an opinion. The district court reasoned that, under South Dakota’s law on proximate cause, the estate needed to show that the administration of tPA would have more likely than not caused Smith to improve.

The district court found Dr. McDowell’s 58 percent estimate faulty because it was derived from a 1995 National Institute of Neurology and Communicative Disorders Stroke Study (NINDS) Study, which included the large percentage of stroke patients who naturally recovered without tPA.

Hence, Dr. McDowell could not reliably state whether giving tPA to Smith would have more likely than not caused her to improve when his calculation included patients who did not receive any benefit from the drug.

As a fallback, Dr. McDowell cited a study published in the Archives of Neurology entitled Review of Tissue Plasminogen Activator, Ischemic Stroke, and Potential Legal Issues (Zivin Paper), but the district court found this study unhelpful because it did not account for the 26 percent of stroke patients who naturally improve without tPA.

Without its expert on proximate cause, the estate found its lawsuit dismissed on summary judgment.

The estate appealed, but Friday the 8th Circuit decided that the district court had it right.

The court focused on the results of the Zivin Paper and concluded that they were not sufficiently relevant to allow Dr. McDowell’s testimony to be admissible under Fed. R. Evid. 702.

The court explained that the Zivin Paper “found that stroke patients receiving tPA are 57.3 percent more likely to improve than stroke patients who do not timely receive tPA. While this finding does indicate that tPA causes some stroke patients to improve, this result does not reveal whether giving a patient tPA will more likely than not cause a stroke patient to improve, which is the material inquiry under a traditional proximate cause regime.”

The court concluded that the estate “has offered no expert evidence or explanation showing how such a purely relative finding of tPA’s effectiveness could be used to estimate whether giving tPA to a stroke patient would more likely than not cause the patient to improve. Accordingly, since Dr. McDowell’s testimony is predicated upon the findings of the Zivin Paper, we conclude that the district court did not abuse its discretion in excluding his expert opinion and granting the motion for summary judgment. (Smith v. Buback)

Five Connecticut lawyers accused of concealing a wife’s assets in a post-divorce proceeding find themselves off the hook from an irate husband’s fraud claims.

The lawyers are Penny Q. Seaman, Susan A. Moch, Kenneth J. Bartschi, Brendon P. Levesque and Karen L. Dowd. They represented Donna Simms for various periods between 2005 and 2008 when Robert Simms, Donna’s ex-husband, sought to have his alimony reduced.

Robert had been forking over alimony to Donna since their divorce in 1979.

In opposing Robert’s motion to modify alimony, the lawyers consistently maintained in the Connecticut courts that Donna “was in highly disadvantaged economic circumstances’’ and that the Robert should ‘‘be compelled to pay substantial sums of money to Donna Simms for her necessary support and maintenance.”

What the lawyers failed to mention was that Donna had become the beneficiary of substantial bequests from her uncle, Albert Whittington Hogeland. In 2006, Donna Simms received $310,000 from Hogeland’s estate. She received another $49,000 from the estate in 2008.

The trial court in the Simms case was rightly peeved when the bequests ultimately came to light. On Oct. 17, 2008, the trial court ruled that the information concerning Donna’s inheritance had been wrongfully concealed from the court and from Robert. Moreover, the court found that Robert had suffered emotional distress and $400,000 in economic damages as a result of the wrongful concealment of Donna’s assets.

With this ruling in hand, Robert sued Donna’s five lawyers for fraud.

But a state judge dismissed the complaint, ruling that the lawyers enjoyed absolute immunity because their alleged concealment occurred in the course of judicial proceedings.

This week, the Connecticut Court of Appeals affirmed that decision, strongly siding with attorneys in the zealous representation of their clients.

“Were a cause of action for fraud against opposing counsel for alleged acts or omissions during the course of litigation permitted, it is foreseeable that in virtually every case a lawyer would know something about his client or the case that the opposing party would think is important to the case,” the court observed.

It explained that, “[a]s with the tort of defamation, there are no safeguards to prevent unwarranted ligation, and it certainly is foreseeable that allowing such a cause of action to commence would have a chilling effect on the attorney-client relationship and on an attorney’s zealous representation of his or her client.”

Accordingly, the court concluded that the lawyers’ “misstatements or omissions in making required statements are more akin to defamatory statements, and, thus, ‘if made in the course of a judicial or quasi-judicial proceeding, they are absolutely immune.’” (Simms v. Seaman).

Judge Thomas A. Bishop, in a well-reasoned dissent, expressed the view that the lawyers representing Donna Simms had crossed the line and that the doctrine of absolute immunity should not be extended to protect attorneys accused of fraud.

“Immunizing lawyers from claims based on fraudulent behavior serves no legitimate public policy,” Judge Bishop wrote. “Reciprocally, leaving counsel subject to claims for fraud does not create the risk of unduly dampening an attorney’s advocacy on behalf of a client.”

The long list of ethical transgressions committed by one Washington personal injury lawyer certainly warranted his disbarment.

But what must have really ticked-off the state’s supreme court justices was the lawyer’s joking that he deserved a box of chocolates for all the fees that would be generated from his client’s case.

Looking back on it, you had to get the feeling that the legal career of W. Russell Van Camp was not going to end well. Van Camp began practicing law in 1973. From his Spokane office, Van Camp handled personal injury, criminal and family cases.

Prior to his latest troubles, the Washington State Bar Association had disciplined Van Camp on three occasions. In 1985, he was censured for charging an unreasonable fee. In 2002, Van Camp was suspended for six months for making false statements in his bankruptcy proceeding.

In 2005, the lawyer received a reprimand for using the term “earned retainer fee” in a fee agreement when the actual purpose of the client’s payment was unclear.

This latter disciplinary violation related directly to the ethical brouhaha that ended his career.

On Dec. 15, 2006, Van Camp was retained by Randy Honkala.

Honkala is a car enthusiast who had purchased Shelby Mustang from Wendle Motors. Dissatisfied with the condition of the vehicle, Honkala slammed Wendle in Internet postings.

Wendle didn’t like this one bit and sued Honkala in federal court for defamation and injunctive relief. Van Camp’s job was to defend Honkala in the federal suit.

On the day he was retained, Van Camp called Wendle’s lawyer, Richard Campbell, to discuss the case. Van Camp joked that Campbell should send him a box of chocolates as thanks for all the money he could expect to make in the case.

In a follow-up fax, Campbell referenced Van Camp’s box-of-chocolates remark, but made clear that his client, Wendle, wanted to settle the case as soon as possible.

Van Camp evidently understood that he had crossed the line with his joke, so he called Campbell’s office to complain about seeing the chocolates remark in writing.

Unfortunately for Van Camp, his joke would come back to haunt him. No, the chocolates comment didn’t constitute a disciplinary violation in and of itself, but it seemed to be taken as evidence of Van Camp’s state of mind when substantive disciplinary charges were later brought against him.

Van Camp’s real problem was his retainer agreement with Honkala and the steps he later took in handling the case and justifying his fees.

Honkala paid Van Camp a $25,000 retainer, but the lawyer’s fee agreement did not explain to Honkala whether it was a nonrefundable flat fee or an hourly fee.

Honkala later fired Van Camp and sought the return of the unearned portion of his retainer. A disciplinary complaint followed when Van Camp refused to return any of the $25,000, and the lawyer found himself in deep trouble.

Last week, the Washington Supreme Court decided that Van Camp should be disbarred because of his “ambiguous” fee agreement, his failure to follow up on and keep his client advised of settlement offers, and some rather sketchy steps the lawyer took in an attempting to justify his $25,000 fee for a case in which little actual work was performed.

Regarding the fee agreement, the court said that the “record establishes that Van Camp failed to communicate how the fee would be calculated and applied. Further, the Disciplinary Board found entering into the ambiguous fee agreement itself to be a violation. The agreement was ambiguous because it included both hourly and retainer-type fee arrangements, and it was devoid of any description of the scope of representation.”

Taken with other disciplinary violations, Van Camp’s legal career was over.

“Van Camp violated his duty to advise and inform his client, to abide by the client’s objectives, to act with reasonable diligence, and to be honest with his client. He used a fee agreement he knew to be ambiguous, failed to explain the basis for his fees, and charged an unreasonable fee.

“He did this knowingly and intentionally for his own benefit. Numerous aggravating factors, including similar prior discipline and bad faith obstruction of the disciplinary process, support the sanction of disbarment,” the court concluded. (In re Van Camp)

Here’s one for members of the criminal defense bar: Can a driver’s license be suspended pursuant to a state implied consent law if the refusal to submit to a breath test was not incident to a lawful arrest?

This month, the Florida Supreme Court tackled that question and the thornier issue of whether the lawfulness of an arrest is subject to review by a state hearing officer in a license suspension proceeding.

The Florida high court addressed these questions in an effort to resolve a conflict among the state’s appellate courts. The decision involved the cases of William Hernandez and George McLaughlin, both of whom had their licenses suspended under the state’s implied consent law for refusing to submit to breath tests.

In seeking to overturn their suspensions, Hernandez and McLaughlin argued that their refusals to take breath tests were not incident to lawful arrests.

The Florida First District Court of Appeal in Hernandez decided that the hearing officer for the state department of transportation should have considered the lawfulness of the arrest in deciding whether to sustain the license suspension.

A conflict was created by the Second District Court of Appeals which decided in McLaughlin that the state’s implied consent law did not allow a state hearing officer in a license suspension proceeding to consider whether a refusal was incident to a lawful arrest.

To resolve the conflict, the Florida Supreme Court first made explicit that an individual’s driver’s license cannot be suspended for the refusal to submit to a breath-alcohol level test where the refusal is not incident to a lawful arrest.

The court explained that the Florida Legislature “has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. … ‘It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.’”

With that questioned answered, the court turned to the problem that the state’s implied consent law narrowly circumscribed the scope of review by department of transportation hearing officers in license suspension proceedings.

The enumerated issues that a hearing officer may consider under the state law do not include the lawfulness of the underlying arrest.

To remedy this problem, the Florida Supreme Court decided to fill in the gap in the statutory language.

“A reading of [the implied consent law] to prohibit review of an unlawful license suspension would lead to an unreasonable result that would render the statutory scheme constitutionally infirm. …

With millions of potential plaintiffs flocking to amusement parks this summer, personal injury attorneys will be happy to learn that at least one California court has eliminated the assumption of risk doctrine in a most unlikely context: the ever-popular bumper car ride.

The court held that held that the primary assumption of risk doctrine is inapplicable to amusement park rides “where the illusion of risk (as opposed to actual risk) is marketed.”

This would seem counterintuitive in the extreme with respect to bumper cars since the ride involves driving funny little cars around in an enclosed space, the object being to crash into your fellow drivers.

As you’re lining up to get your turn in a bumper car, why wouldn’t you think that there’s a chance of a freak injury as you’re being knocked about?

The OB/GYN physician and surgeon took her two kids to the park on July 5, 2005. During a bumper car ride with her 10-year-old son, her car was struck head-on by another car. Immediately following that collision, she was struck from behind.

Dr. Nalwa sued Great America for common carrier liability and negligence under California law. According to Dr. Nalwa, Great America was at fault for not taking steps to eliminate head-on collisions on its bumper car ride.

Evidently, the amusement park industry has recently recognized that there is a particular hazard with head-on collisions. Across the country, parks have begun to remedy the problem by adding an island in the middle of bumper car tracks so that riders all drive in the same direction. Great America modified its bumper car track in 2006, after Dr. Nalwa’s accident.

Great America nonetheless argued that both the common carrier and ordinary negligence claims were barred because Dr. Nalwa’s injuries were the result of bumping, an inherent risk of riding bumper cars.

A state trial judge granted Great America’s motion for summary judgment on this basis, but that decision was reversed earlier this month by the California Court of Appeal.

The state appellate court concluded that public policy bars the application of the primary assumption of risk doctrine under these circumstances, explaining that the “very reason we go on amusement park rides is because we ‘seek the illusion of danger while being assured of [a ride’s] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.’ …

“While some rides may have inherent dangers owning to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding. In California, this ‘thrilling-while-safe’ illusion is maintained not only through complex design, but also by a protective regulatory scheme governing amusement parks.”

Moreover, the court observed that Dr. Nalwa’s lawsuit would not be barred by assumption of risk in any event because amusement park owners owe a heightened duty of care to their patrons.

“Here, [Great America] is the owner of an amusement park. It holds the park open to the public with the promise of safe fun and excitement. …

“Within the confines of state regulation, respondent maintains complete control over the design, maintenance and operation of the bumper car ride. Without question, it is best situated to minimize any risks associated with its rides, both because of its control and because of the profits such parks make,” the court said. (Nalwa v. Cedar Fair)

“Here, Nalwa participated in the Rue Le Dodge ride knowing that she would be jostled about in her car as a result of bumping into other cars,” the dissenting justice wrote. “The sole purpose of a bumper car ride is to enjoy the experience and thrill of minor-impact bumping. The name of the game is to bump and to attempt to avoid (often unsuccessfully) being bumped.”

I side with Justice Duffy on this one and regret the fact that the amusement park industry has taken steps to eliminate head-on collisions from bumper car rides.

Sure, there’s a risk of being hurt, but in my experience the head-on collisions were the most fun.

In my mind, the millions of ear-to-ear smiles generated by the really good bumper car thwackings are well worth the occasional freak injury.

Did a Michigan self-storage facility have any duty to prevent the death of a customer who accidentally locked himself in the trunk of a vintage car he was restoring?

Earlier this month, the state’s court of appeals decided that there could be no liability, whether one looked to the terms of the company’s rental agreement or applied ordinary negligence principles.

The case involved the tragic death of Anthony Lagos at the Maple Village Self-Storage facility in Washtenaw County.

Lagos leased a unit at the facility in 2003 and used it to keep a red 1977 Oldsmobile Cutlass Supreme. Lagos’ schedule sometimes prevented him from working on the car during normal business hours, so the storage facility had granted him 24-hour access to his rental unit.

On the evening of July 9, 2005, Lagos went to the facility and parked the Cutlass outside of his storage unit, partially blocking access to the storage units on either side of his unit.

Sometime between 9:35 p.m. and 10 p.m., Lagos crawled into the trunk of his car to repair a taillight. Somehow, the trunk lid closed, trapping Lagos.

Between 9:45 p.m. and 10 p.m., William Davis III — the owner Maple Village Self-Storage — drove through the facility to see that all was secure.

Davis drove by the Cutlass during his patrol of the grounds, but detected nothing amiss in light of Lagos’ typical habits.

The next day, Gerald Block, the property manager, returned from a vacation and saw the Cutlass still parked outside Lagos’ storage unit. Again, this was not unusual, so Block did not investigate until around 9:00 p.m. when he made his final rounds before closing time.

Block saw the keys dangling from the trunk lock and opened the trunk. He found the lifeless body Lagos, who had suffocated.

Lagos’ estate sued Maple Village Self-Storage for wrongful death. A state trial judge denied the company’s motion for summary judgment, but earlier this month the Michigan Court of Appeals decided that there was no basis for finding the self-storage facility liable for the death of its customer.

First, the court concluded that the facility had no duty to inspect the trunk under terms of its rental agreement. Apart from an express release of liability in the rental contract, the Lagos estate could not show that other terms of the agreement imposed an affirmative duty to act under the circumstances of this case.

The court of appeals noted that “the contract plainly indicates that ‘management will not supervise use of unit in any way.’ Accordingly, Maple Village was not contractually obligated to investigate how the decedent was using his storage unit.”

After ruling that the Lagos estate had no claim under a breach of contract theory, the court turned to the issue of whether a duty of care existed under ordinary negligence principles.

The court likewise answered this question in the negative.

First, the court concluded that the death of Lagos was not foreseeable for the purpose of imposing a duty of care on Maple Village.

The court explained that “the danger present on the premises in this case, i.e., a trunk lid that would not remain open by itself, is not a danger traditionally associated with the nature of the relationships between the parties in this case. …

“Indeed, the danger is not one created by defendants or otherwise a condition of the land to which defendants subjected the decedent by inviting the decedent onto their premises. In fact, the dangerous condition was brought onto the premises by the decedent and there is no evidence that defendants had any knowledge of the presence of the dangerous condition.”

The court concluded that “requiring defendants to open the trunk of a vehicle parked on the premises after hours is outside the scope of any inspection duty assumed by defendants, especially where it was not foreseeable that the decedent would be injured if Davis did not undertake the affirmative act of opening the trunk.” (Estate of Lagos v. Davis)

Life is full of embarrassing moments. And we can all sympathize with a Kansas prison guard’s plight when superiors wrongly ordered her to remove her bra when she reported to work one day.

But why turn that single incident into a federal sexual harassment lawsuit?

The Kansas Department of Corrections hired Michelle Rice as a prison guard in March 2007. She was assigned to work at the Topeka Correctional Facility.

Rice arrived for work on April 8, 2008, thinking it would be a normal day. Unfortunately, this was the day that the head honchos at the prison decided to roll out new security protocols that required corrections officers to pass through a highly sensitive metal detector.

This came as a surprise to Rice and her co-workers because they had been told that April 21 would be the start date for the new program.

For Rice, the new metal detector was a real problem because the underwire in the bra she was wearing that day tripped off the alarm.

The corrections officers manning the metal detector were at a loss at what to do after Rice made several unsuccessful attempts to get through the metal detector. This being a brand new security program, there was no written policy in place for dealing with troublesome undergarments.

Should employees be subjected to a strip search? Or would a simple pat-down suffice to allow Rice to proceed to her post?

Higher ups were consulted and the brass at the prison were adamant that corrections officers would not be allowed to go to work unless they could step through the metal detector without triggering an alert, even if that meant they would have to remove their undergarments.

So Rice was told that she would have to go to a nearby restroom and remove her bra. Moreover, because of the placement of the metal detector, Rice would have to walk to her post braless before finding another restroom to put it on again.

Of course, while all this was going on, there were other employees and inmates milling around, witnessing Rice’s humiliating predicament. Soon the prison grapevine was humming with news of the embarrassing episode.

Rice went to work that day but claims she was emotionally scarred by the whole affair, ultimately needing counseling.

She filed a grievance and the prison quickly amended its policy to avoid a repeat. Under the new policy, employees would never be required to remove undergarments, and pat-downs conducted by employees of the same sex in a private place would suffice to pass security.

But Rice wasn’t satisfied. She sued the state department of corrections for hostile work environment sexual harassment under Title VII.

Okay, let’s take it as a given that prison officials were wrong in making Rice remove her bra. And one can only imagine the taunts by inmates that Rice had to endure in the days following the bra incident.

But you’d figure that a corrections officer who deals with hardened criminals day after day would have a thicker skin. So why make a federal case out of a single, albeit humiliating, incident?

In essence, that’s the conclusion that U.S. District Judge Sam Crow reached last week when he threw out Rice’s sexual harassment lawsuit.

In deciding that the evidence failed to show that the conduct Rice complained of was sufficiently severe or pervasive, the judge first noted that prison officials plainly never intended that the new security policy would discriminate against Rice or any female based on sex.

“The new security requirement to pass through the metal detector was imposed on all corrections officers, regardless of their gender,” the judge observed.

“It did not have a disparate impact on all females, but on the plaintiff because of the structure of the bra she was wearing at the time. Plaintiff has not shown that the conduct’s disproportionate impact on women is great, or that many other women were negatively affected by the new security procedure, thus no group-based effect has been shown.”

And apart from the embarassment, Rice failed to show how the incident significantly impacted her job.

Judge Crow explained that Rice “speculates that the incident could cause her to lose the respect of inmates, but no facts have been established that show any knowledge of the incident or of her bralessness by inmates at her post, or any loss of respect, or any other impact of this incident on plaintiff’s workplace.”

The judge said that he was “sympathetic to the predicament plaintiff experienced, and believes that she was understandably humiliated by the incident. Nonetheless, the record fails to raise a material question of fact as to the severity or pervasiveness of sexual harassment.” (Rice v. Kansas)

In sum, Rice’s case suggests the problem of the overly sensitive employee who all too often sees a civil rights lawsuit in every bad experience in the workplace.